DEENA Vs. STATE OF U P

JUDGEMENT

(1.) A prayer for bail to the appellant-applicants has been made in this criminal appeal, which arises out of their conviction by order of the Additional District and Session Judge, (Fast Track Court No. 5) Mathura, dated 20.12.2008, and sentencing them under section 302 read with section 34 IPC with life imprisonment and Rs. 25, 000 as fine under section 302 in ST No. 54 of 2005 (State v. Ram Prakash and others).

(2.) WE have heard Sri S.V. Goswami, learned Counsel for the appellants, Sri Ra jul Bhargava for the complainant and the learned AGA on the prayer for bail to them, and perused the record, written ob jection filed by the State.

(3.) ON the other hand, the submission of the learned Counsel for the complainant and the learned AGA was that as the appli cants had been named in the FIR and, again, they were named in the evidence, hence they were implicated in the case in exercise of powers under section 319 Cr.P.C. and it was not material if the police for some extraneous considerations ex cluded their names when it filed the charge-sheet From the mere circumstance that in his cross-examination PW 1 Gauri, the informant, stated that he could not dictate the FIR at that stage, was not mate rial because the evidence of this witness was recorded 2-1/2 years after the lodging of the FIR. It was further submitted that as the PHC Gowardhan was at a close dis tance to the police station Gowardhan, it was not at all material if the doctor noted that the deceased (who was then the in jured, Keshav Deo) had been brought to him at 4 P.M. and, as such, a minor differ ence in the time of the lodging of the FIR and time of the arrival of the injured at the PHC cannot lead to the only inference that the FIR was antetimed. The mere absence of the crime number in the majmbi chitthi and non-mention of the arms carried by the accused cannot lead to an inference that the FIR was not in existence till then or that it was ante-timed. It was further argued by the learned Counsel for the complainant that the suggestion that the injury to the deceased was the result of an accident with the tractor is purely a speculative sugges tion and there is no scientific examination of the tractor nor were there any traces of blood found on the tractor which could have constituted any basis for setting up the imaginary case by the accused. It was further submitted that the allegations of repeated crimes by the complainant's side could have provided the motive for the crime and would not be only suggestive of false implication of the accused as motive is a double-edged weapon. The non-examination of the witness of the locality is not fatal as outsiders are reluctant to give evidence in crimes as they do not want to be drawn into the enmities between the parties. Simply because the tractor owner has not been identified cannot lead to an inference that the accused had not arrived at the spot on the tractor.